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Due Process, Fair Play, and Excessive Partisanship: A New Principle for Judicial Review of Election Laws

Edward B. Foley

Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law and Director, Election Law @ Moritz, The Ohio State University Moritz College of Law

This Article, part of a larger project on the concept of fair play in electoral competition, grows out of research conducted during a fellowship at Stanford University’s Center on Democracy, Development, and the Rule of Law (CDDRL). I am extremely grateful, both for the fellowship itself and for the many helpful exchanges of ideas during the fellowship, to Bruce E. Cain, Larry Diamond, Francis Fukuyama, Nathaniel Persily, and Stephen J. Stedman. While at Stanford, I had the opportunity to present an early version of this Article at the Stanford Law Review’s symposium on the “Law of Democracy” (February 5, 2016), and also as part of a CDDRL workshop (February 25, 2016). I also presented a version at the University of Kentucky College of Law (April 1, 2016). I very much appreciate the feedback I have received from those who participated at these events, including Tabatha Abu El-Haj, Stephen Ansolabehere, Rabia Belt, Guy-Uriel Charles, Joshua A. Douglas, Luis Fuentes-Rohwer, Heather Gerken, Richard L. Hasen, Samuel Issacharoff, Michael S. Kang, Eugene Mazo, Michael W. McConnell, Maggie McKinley, Spencer A. Overton, Richard H. Pildes, Bertrall Ross, Jane S. Schacter, Nicholas Stephanopoulos, and Justin Weinstein-Tull. As always, I’ve benefited immensely from feedback received from my Moritz colleagues, especially Steven F. Huefner and Christopher J. Walker, as well as Michael Les Benedict, Lisa Marshall Manheim, and Evan Zoldan. I have also been tremendously fortunate to work with Matt Cooper and Paul Gatz, two of Moritz’s superb law librarians, who have been amazingly creative and effective in unearthing a wide range of sources for this project.

American democracy is plagued by excessive partisanship, and yet constitutional law thus far has been incapable of redressing this ill. Gerrymandering is one clear example: the partisan distortion of legislative districts has accelerated dramatically in the last several decades, yet the federal judiciary has been unable to develop a constitutional standard for curbing this egregiously antidemocratic behavior. Likewise, state legislatures around the country in the last decade have been enacting statutes to cut back on voting opportunities, and federal courts have struggled with articulating appropriate standards for evaluating the constitutionality of these rollback laws. A main reason for this struggle has been the judicial unwillingness to tackle directly the transparently partisan motives underlying these legislative cutbacks in voting opportunities.

This judicial difficulty with curtailing excessive partisanship stems from an attempt to rely on equal protection as the relevant constitutional standard for judicial review of election laws. Invocation of equal protection is understandable given the initial success of Warren Court precedents, like Reynolds v Sims and Harper v Virginia Board of Elections, in using equal protection to protect equal voting rights. But as the courts have subsequently discovered, equal protection is ill-suited to the problems of gerrymandering or legislation that cuts back on voting opportunities for all voters.

This Article offers a previously undeveloped alternative to equal protection: due process. In a wide range of areas, including civil and criminal procedure, the Supreme Court has long recognized that due process encompasses a principle of fair play. This fair play principle, well understood to apply in society to athletic competition, is suitable in the domain of politics for constraining excessive partisanship in electoral competition. In fact, the history of the Fourteenth Amendment’s ratification reveals that this fair play principle played an essential role in constraining excessive partisanship that threatened to destabilize the Republic at the time the amendment’s ratification was under consideration in Congress. Once the significance of this history is recognized, the Fourteenth Amendment’s Due Process Clause is properly construed as constraining the partisan overreaching that currently threatens to undermine American democracy. In this way, the federal judiciary appropriately can invoke due process to directly redress excessive partisanship in the form of gerrymandering or rollbacks in voting opportunities.

Introduction

Can the US Constitution, as currently written, handle the problem of excessive partisanship? Or, instead, does the Constitution need to be amended to address this problem? That urgent issue is the focus of this Article.

Partisan overreaching takes different forms. Best known is the gerrymander: the deliberate manipulation of legislative district lines to increase a political party’s chance of holding power in a legislative chamber.1 But also pernicious is legislative alteration of voting rules, like eliminating the opportunity to register and cast a ballot at the same time—known as “same-day registration”—in the hope that this rule change will lower turnout of the opposing party’s voters, thereby increasing the chances of electoral victory for one’s own party.2

Partisan competition, as long as it stays within appropriate bounds, is a desirable feature of electoral democracy.3 Parties are in the business of winning elections, and the existence of two (or more) parties vying vigorously for support among voters is a healthy sign of political freedom. Each party has different views on matters of public policy, and each hopes to convince voters that its views are preferable, at least for the immediate future. One would expect the fight between parties in the effort to prevail at the ballot box to be energetic and robust.4

But this partisan competition spills over into an unhealthy domain when one party is able to capture the operation of the electoral process itself and to use this control to give itself an advantage in the competition to win votes.5 This unfair advantage is a subversion of democracy because it interferes with the authentic electoral choice that the voters otherwise would make.6 Absent the unfair advantage, no party would have power over the electoral choice, and if the electoral system were otherwise working properly, voters would freely elect the candidates they most wished to represent them. Partisan control over the electoral process distorts this free choice, causing voters to elect candidates they would not have picked in the absence of this partisan distortion.

A well-designed constitution would prevent this kind of partisan control over the electoral process. It would do so through some sort of institutional arrangement whereby the government bodies empowered to operate the electoral process would be structured in a way to prevent one party from controlling them.7 This arrangement might explicitly give two parties equal power over the electoral process, so that they mutually prevent each other from monopolizing the process.8 Or the arrangement might be more nonpartisan in nature, keeping the parties at arm’s length from the levers of the electoral machinery.9 But whatever particular institutional arrangement would be employed, the constitution would block a party’s ability to take over the procedures for running elections.

The US Constitution famously lacks an explicit institutional arrangement of this type. It does so because the Framers were hoping to avoid the development of political parties in the first place.10 No institutional check on a party’s ability to control elections would be necessary if parties did not exist.

But of course it did not work out that way. Political parties very much do exist in America’s system of electoral democracy. They have existed for almost as long as the ink has been dry on the original Constitution itself,11 and they obviously are not going to disappear—at least not in the foreseeable future, and most likely not as long as the First Amendment guarantees political freedom.

Thus, the question arises: Is the US Constitution inherently flawed insofar as it contains no mechanism for constraining the ability of a political party to capture control over the electoral process? Will the Constitution remain defective in this respect until it is amended to include the institutional mechanism that it has lacked since the outset? Or, alternatively, despite having no such explicit institutional mechanism, does the existing Constitution have the capacity to be interpreted in such a way as to make up for this apparent structural deficiency?

Over the last several decades there has been an effort to construe the Constitution’s Equal Protection Clause to fill this gap. Equal protection has been invoked in an effort to constrain partisan gerrymanders.12 Equal protection has also been invoked as grounds for invalidating legislation that alters voting rules to give one party an electoral advantage.13

But equal protection has run into difficulties when invoked in this way.14 In the context of partisan gerrymandering, Justice Antonin Scalia memorably intoned that equal protection was incapable of providing a judicially manageable standard.15 And equal protection has similarly stumbled when attempting to provide a principled standard for constraining partisan manipulation of voting rules.16

This Article offers an alternative to equal protection. Due process, instead, provides a more promising basis for constraining partisan overreach. Due process embodies the principle of fair play, and fair play is an appropriate concept to employ as a constraint on excessive partisanship. Moreover, a return to the historical circumstances in which the Fourteenth Amendment was added to the Constitution provides compelling justification for construing the Amendment’s Due Process Clause as embodying a constraint against partisan overreaching. Once this history is understood, this Article shows how judicial enforcement of due process as fair play can work to invalidate both partisan gerrymanders and legislative changes to voting laws aimed at securing an unfair partisan advantage.17

At the outset, it is important to be explicit about what kind of exercise in constitutional interpretation this Article engages in. It is not a narrowly confined reading of the text, seeking the most limited reading that its words will bear, an approach Professor Ronald Dworkin called “conventionalism”18 and for which Scalia has arguably been the most influential advocate during the last quarter century. Nor does this Article advocate the kind of utopian approach to constitutional interpretation associated with Justice William Brennan and such theorists as Professors David Richards, Lawrence Sager, and James Fleming, among many others, which endeavors to identify philosophically pure principles of equality and liberty and then employ the “equal protection” and “liberty” clauses of the Constitution as vessels for imposing those philosophically pure principles on a reluctant Republic.19

Instead, the Article endeavors to provide a version of the middle ground approach that Dworkin labeled “law as integrity,”20 which attempts to construct the best “fit” with the country’s historical record and trajectory, including the totality of its judicial precedents and the most sensible system of law to which those precedents collectively point.21 As Dworkin explained, finding the best “fit” requires viewing the existing historical record “in the best light” and thus bringing to that historical record some moral judgment about what understanding of that record would be most attractive.22 Yet at the same time, Dworkin insisted, for the exercise to be one of interpretation, the constraint of fit must be genuine. The interpretative understanding of the historical record must be authentic, true to the history itself, and not a distorted imposition of “presentist” values upon the historical record, which cannot bear the weight of that imposition.23

The understanding of the Due Process Clause that this Article advances—that due process encompasses a principle of fair play that constrains excessive partisanship—is an exercise of Dworkin’s middle ground “law as integrity” approach. It is an interpretation of due process that emerges from the historical record itself and, constrained by the obligation of fit, aims at an authentic understanding of that record. At the same time, as an exercise of interpretation, it seeks to understand the totality of the historical record in its best light, and this understanding is not necessarily the same one that the historical actors themselves would have had at the moment they engaged in historically significant conduct. Due process as embodying a constraint against partisan overreaching is an interpretation we today make of the existing historical record, because it is an interpretation that makes the most sense of the Constitution we have been bequeathed and which we must use to conduct our politics for the foreseeable future, until we have the capacity to amend it for the better. This interpretative exercise pursuant to “law as integrity” does not yield the most just possible constitution for contemporary America, or even the most democratic possible constitution. Rather, it yields an interpretation that is true to the existing Constitution’s text and historical circumstances, with those historical circumstances seen in their best light given the use we must make of the Constitution to govern partisan competition as it exists today.

1. For the history of congressional gerrymandering, see generally Erik J. Engstrom, Partisan Gerrymandering and the Construction of American Democracy (Michigan 2013). For a richly detailed study of gerrymandering as practiced in the Gilded Age after the Civil War, see generally Peter H. Argersinger, Representation and Inequality in Late Nineteenth-Century America: The Politics of Apportionment (Cambridge 2012). For a useful introductory survey of contemporary issues concerning gerrymandering in light of its historical development, still valuable despite now being somewhat dated, see generally David Butler and Bruce Cain, Congressional Redistricting: Comparative and Theoretical Perspectives (Macmillan 1992).

2. These legislative changes to election laws are part of what has come to be known as the contemporary “voting wars.” Richard L. Hasen, The Voting Wars: From Florida 2000 to the Next Election Meltdown 41–73 (Yale 2012); Richard L. Hasen, The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, 81 Geo Wash L Rev 1865, 1870–78 (2013). My own prior contribution to this topic includes Edward B. Foley, Voting Rules and Constitutional Law, 81 Geo Wash L Rev 1836 (2013). For a recent discussion of same-day registration (also called “election day registration” when referring specifically to simultaneous registration and voting on Election Day itself, in contrast to early voting), see Sean J. Young, The Validity of Voter Registration Deadlines under State Constitutions, 66 Syracuse L Rev 289, 291–95 (2016).

3. The Framers of the federal Constitution obviously did not think so. As is well-known to any student of American history, the Framers hoped that through the separation of powers they could prevent political factions from coalescing into the kind of entrenched two-party competition that occurred between Whigs and Tories in Britain. Of course, their constitutional design quickly failed in this respect, with two-party competition between Federalists and Jeffersonian Republicans becoming well-developed by the disastrous presidential election of 1800. Although Founders such as James Madison had become resigned to the presence of two-party competition by this time, they still did not view this two-party competition as a desirable feature of democracy. Rather, the goal of both Federalists and Jeffersonian Republicans was to obliterate the opposing party’s existence, not merely defeat its candidates for office. It was not until the development of America’s second party system, with the political competition now between Whigs and Jacksonian Democrats, that the leading participants accepted this two-party competition as a healthy feature of a robust electoral democracy. For the development of this acceptance, including President Martin van Buren’s important role in its fruition, see Richard Hofstadter, The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780–1840 212–71 (California 1970). I have recently explored this development in the specific context of disputes over electoral outcomes. See Edward B. Foley, Ballot Battles: The History of Disputed Elections in the United States 75–97 (Oxford 2016).

4. For a leading contemporary account of the essential role that political parties currently play in American democracy, see John H. Aldrich, Why Parties? A Second Look 163–292 (Chicago 2011). Professor Richard H. Pildes has prominently made a vigorous defense of political parties a key theme of his recent election law scholarship. See Richard H. Pildes, Romanticizing Democracy, Political Fragmentation, and the Decline of American Government, 124 Yale L J 804, 828–33 (2014). See also Davis v Bandemer, 478 US 109, 144–45 (1986) (O’Connor concurring in the judgment) (“There can be little doubt that the emergence of a strong and stable two-party system in this country has contributed enormously to sound and effective government.”).

6. A well-functioning electoral democracy strives to “secur[e] the selection of representatives that as fully as possible stand for the ‘free and uncorrupted choice of those who have the right to take part in that choice.’” Issacharoff, 116 Harv L Rev at 648 (cited in note 5), quoting Ex Parte Yarbrough, 110 US 651, 662 (1884). For a theoretically sophisticated explication of this “alignment” principle—designing electoral rules so that the results of the electoral process align as much as possible with the inputs that the electorate submits in the form of ballots cast—see Nicholas O. Stephanopoulos, Elections and Alignment, 114 Colum L Rev 283, 304–13 (2014).

7. On the essential role of sound institutional design in the regulation of the electoral process, see Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It 11–37, 110–33 (Princeton 2009). See also Richard L. Hasen, Book Review, Election Administration Reform and the New Institutionalism, 98 Cal L Rev 1075, 1085–98 (2010); Daniel P. Tokaji, The Future of Election Reform: From Rules to Institutions, 28 Yale L & Pol Rev 125, 143–53 (2009). I have also explored these issues of institutional design. See Edward B. Foley, The Separation of Electoral Powers, 74 Mont L Rev 139, 146–62 (2013).

9. See, for example, Daniel P. Tokaji, America’s Top Model: The Wisconsin Government Accountability Board, 3 UC Irvine L Rev 575, 577–78 (2013) (praising Wisconsin’s Government Accountability Board for its nonpartisan structure). Regrettably, partisan conflict over voting in Wisconsin has overtaken the GAB, as the state legislature has replaced it with a more politically accountable institution. See Scott Bauer, Wisconsin GAB in Final Days as State’s Elections Authority (Milwaukee Journal Sentinel, June 26, 2016), archived at http://perma.cc/QD55-2C43.

13. Hasen, 81 Geo Wash L Rev at 1880–85 (cited in note 2). See also Daniel P. Tokaji, Applying Section 2 to the New Vote Denial, 50 Harv CR–CL L Rev 439, 442–47 (2015) (discussing § 2 of the Voting Rights Act as an alternative to equal protection as a basis for challenging these laws insofar as they are racially discriminatory in the burdens they impose).

17. This Article, broadly speaking, shares some basic goals with Professor Richard E. Levy’s new essay. See generally Richard E. Levy, The Nonpartisanship Principle, 25 Kan J L & Pub Pol 377 (2016). But the approach here differs from Levy’s in some important details. First of all, Levy states his nonpartisanship principle much too broadly when he writes, for example, “partisan electoral rules violate freedom of speech.” Id at 378. On the contrary, much of American election law is structured according to party affiliation. For example, primary elections are inherently partisan, and state laws can, without violating the First Amendment, require candidates and voters to be party members in order to participate in the partisan primary. Indeed, it can violate the First Amendment if state law fails to honor a political party’s wishes to limit participation to party members. See California Democratic Party v Jones, 530 US 567, 572–82, 586 (2000).

Similarly, state laws that regulate access to the general election ballot can distinguish between major-party and minor-party, or independent, candidates. See Mandel v Bradley, 432 US 173, 177–78 (1977) (per curiam) (holding that an early filing deadline that applied only to independent candidates was not per se unconstitutional). While it is true, as Levy observes, that state law cannot make ballot access unduly restrictive, there is no constitutional requirement of strict nondiscrimination between major and minor parties, and Levy’s nonpartisanship principle is not sufficiently nuanced to distinguish between legitimate and illegitimate considerations of partisanship. See id, quoting Storer v Brown, 415 US 724, 742 (1974) (holding that the proper standard was whether “a reasonably diligent independent candidate [could] be expected to satisfy the . . . requirements”). The same point applies to a legislature’s consideration of party membership when allocating seats on a legislative committee, for example. See generally Judy Schneider, Committee Assignment Process in the U.S. Senate: Democratic and Republican Party Procedures (Congressional Research Service, Nov 3, 2006), archived at http://perma.cc/4XM3-UKQY. It is simply too strong a statement to say that the government must be strictly nonpartisan in its regulation of political competition. See Levy, 25 Kan J L & Pub Pol at 382–86, 399–402 (cited in note 17).

Levy falters in this respect because, like others before him, he has attempted to rely on equal protection as well as free speech as the two constitutional sources for a constraint on partisanship. But neither of those constitutional sources provides a basis for distinguishing permissible from excessive partisanship. Levy does not consider due process as an alternative. It is the distinctive contribution of this Article to show that due process, and the principle of fair play that it embodies, provides a basis for constraining partisan overreaching. The idea of fair play accepts a large degree of partisanship in politics, but steps in when partisanship goes too far. In this respect, it is a more advantageous constitutional ground on which to proceed, rather than Levy’s mistaken attempt to rely on either equal protection or the First Amendment. See id at 378–88.

19. See, for example, James E. Fleming, Securing Constitutional Democracy: The Case of Autonomy 61–85 (Chicago 2006) (developing a “Constitution-perfecting theory”); Lawrence G. Sager, Justice in Plainclothes: A Theory of American Constitutional Practice 42–57 (Yale 2004); David A.J. Richards, Toleration and the Constitution 296–303 (Oxford 1986). Fleming’s more recent work, however, is arguably more accepting of the necessary gap between what an ideal constitution would provide and what is properly justifiable as a matter of interpreting the actual Constitution that we have. See generally, for example, James E. Fleming, Fidelity to Our Imperfect Constitution: For Moral Readings and against Originalisms (Oxford 2015).

20. Dworkin, Law’s Empire at 225 (cited in note 18) (describing the concept as one that “insists that legal claims are interpretive judgments and therefore combine backward- and forward-looking elements”).

21. See id at 239 (“The judge’s decision—his postinterpretive conclusions—must be drawn from an interpretation that both fits and justifies what has gone before.”).